Shameful and ineffective immigration policies

It appears the Government may at last be moving to reform its shameful policy of imposing five-year mandatory sentences on impoverished Indonesians who crew asylum seeker boats.

It may also re-examine a policy that's resulted in dozens of Indonesian children being detained – in several cases more than 700 days – because Australian authorities did not believe their claims that they were minors.

Now, after criticism from more than a dozen judges and tens of millions spent on court cases, a Senate committee into two Greens' private senator's bills has recommended the Government review its mandatory sentences policy.

In early 2010, the Greens and legal experts warned the Government its proposed legislation of mandatory sentences would punish the wrong people. Sadly, we've been proven right. The big fish, the heads of people smuggling syndicates, continue to elude justice.

This month, the Senate tabled reports on two bills I had introduced to fix continuing problems with the Migration Act. The Migration Amendment (Removal of Mandatory Minimum Penalties) Bill 2012 seeks to restore judicial discretion to the courts in deciding sentences for convicted people smugglers and remove the mandatory five-year jail term. It is complemented by the Crimes Act Amendment (Fairness for Minors) Bill 2011, which includes a ban on using wrist x-rays to determine the ages of people who claim to be adults and sets time limits on charges. The bill requires that the onus is on Australian authorities to prove that someone is an adult before they're put in an adult prison.

The mandatory sentences inquiry heard many people who crew asylum seeker boats are sometimes tricked into boarding unseaworthy vessels. Lawyers for some of the accused told the committee how their clients thought they were accepting jobs as fishermen or cooks. The crew learned something was amiss when a second boat would arrive to swap asylum seekers for the smuggling leaders in what becomes a one-way voyage.

As the Gilbert and Tobin Centre of Public Law told the inquiry, most people who appear before Australian courts on people smuggling charges are impoverished members of Indonesian fishing communities.

The centre said:

At best they are marginal to the smuggling networks the mandatory sentencing regime purportedly targets and, given their backgrounds, it is hard to see how imposing mandatory minimum sentences upon them can be justified according to the principles either of specific and general deterrence or proportionality that underpin sentencing policy.

The Commonwealth Director of Public Prosecutions said that since 2008-09, more than 40 per cent of prosecutions of people smugglers had ended in acquittals or been discontinued. In early March 2012, the agency said of 208 people facing court for people smuggling, only three were considered ring leaders.

Judges and magistrates normally confine their comments to the public from their judgements within a court room. Their professional body, the Judicial Conference of Australia, said its very submission to the inquiry was "exceptional". The conference said:

It is the responsibility of the judiciary, and not the role of the legislative or executive branches of government, to pronounce individual sentences on individual offenders. Mandatory minimum sentences restrict judicial discretion when giving effect to this quintessentially judicial task.

The submission added some of Australia's judges had imposed sentences on people smugglers they thought were "manifestly unjust."

Nineteen groups, including the Royal Australian and New Zealand College of Radiologists and every children's commissioner in Australia, backed my second bill which sets out procedures and time limits for charging non-citizens alleged to be 'people smugglers.' Several lawyers told the second inquiry they used legal aid funding to travel to remote Indonesian villages to meet the children's families and get their proof of age. It's a task Australian police based in Indonesia ought to be doing.

The inquiry heard of an Indonesian child who was held for 734 days before a court found they were a minor. Others were held for 616 days, 516 days, 510 days and 490 days. Reasons why they're detained so long was because there are no time limits on when to charge someone, leaving some to be held without charge for 300 days or more.

Authorities also rely on discredited wrist x-rays to try determining their age. This imprecise practice has been ruled out in other countries such as the United Kingdom by paediatric medical experts. My bill bans wrist x-rays. It also stops minors from being detained alongside adults -- something Australia's Government rightly condemns for Australians in Indonesia, yet tolerates for Indonesia's children in Australian custody.

Locking up Indonesian children and imposing five-year jail terms on impoverished Indonesian fishermen has never acted as a deterrent. Not even the Government claims it works, so why maintain it?

The evidence is clear that all of the experts believe these bills should be passed. The Government has squibbed on accepting that. If the Government won't accept the Greens' bills, they must table their own.

Sarah Hanson-Young is the Greens Senator for South Australia and spokesperson for immigration and citizenship. View her full profile here.